Director of Public Prosecutions v Nguyen

[2014] VCC 2329

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-01225

DIRECTOR OF PUBLIC PROSECUTIONS

v

DONNY NGUYEN

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 August 2014
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2014] VCC 2329

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie
For the Accused	Mr S. Anger

1Donny Nguyen, also known as Ahn Hung Nguyen, you have pleaded guilty to one charge of trafficking a marketable quantity of controlled drugs, namely heroin, between 24 October 2010 and 15 April 2011.  You also admitted one relatively minor and very old prior conviction entered at Fairfield Local Court in New South Wales in April 1996 on charges of supplying a prohibited drug and being in possession of goods suspected of being stolen.  In relation to that you were released on a Community Service Order with 250 hours community work and a $300 fine.  I put that prior matter to one side because it occurred so long ago and was obviously a relatively very minor matter.

2The circumstances of your offending were set out in comprehensive detail in the Crown Plea Opening which was read to the court and tendered as Exhibit A.  That Exhibit will remain on the court file and accordingly I do not propose to rehearse all of the details of your offending in such comprehensive detail during the course of these sentencing remarks.  However, your offending may be further summarised as follows.  Between the dates I have mentioned, 24 October 2010 and 15 April 2011 you were engaged in organised drug trafficking which involved the repeated trafficking of heroin and on one occasion methylamphetamines, in total amounting to a marketable quantity.

3By way of background, your offending came to light during the course of Operation Rattlesnake which was conducted jointly by the Victoria Police, the Australian Federal Police and the Australian Customs Service between August 2010 and April 2011.  That investigation was targeting a syndicate suspected of being involved in the importation of heroin from Vietnam to Australia.  In particular, the operation was focused on the distribution and trafficking of the imported drugs both in Sydney and in Melbourne.  The investigation revealed that the trafficking of the imported drugs in Sydney and Melbourne was done largely at the direction of a principal offender by the name of Kin Akan Minh Duong hereinafter referred to as Duong who resided in Sydney.  Mr Duong was both facilitating the importation of heroin, using couriers, and then distributing that heroin in Sydney and Melbourne after he had arrived.  The investigation revealed that you were one of the people to whom he was distributing the imported heroin. 

4Over the period between October 2010 and April 2011 you travelled from Melbourne to Sydney on numerous occasions in order to purchase heroin at the wholesale level from Mr Duong or his associates.  You would then return to Melbourne where you trafficked the heroin to local dealers.  On some occasions you were actually supplied by Duong's associates directly with the heroin in Melbourne which you then on-sold in Melbourne.  As I have mentioned on one occasion on 9 December 2011 you travelled to Sydney and purchased methylamphetamine, commonly known as ice, and then flew back to Melbourne with those drugs in your possession with the intention of trafficking in them.

5During the period of your drug trafficking activities you met frequently with another co-offender by the name of Ms Tuyet Tieu who was a cousin of Mr Duong.  Ms Tieu resided in Melbourne and was effectively the banker or bookkeeper for Duong's activities.  At his direction she remitted funds to Vietnam and on occasions met with dealers such as you in order to receive payments for the heroin that had been purchased for Duong.  On at least one occasion Ms Tieu was one of the people who supplied you with heroin in Melbourne at Duong's direction.

6The Crown opening on the plea, Exhibit A, sets out in comprehensive detail the circumstances of 11 separate transactions which are the basis of the charge to which you have pleaded guilty.  Very briefly summarised, those transactions were as follows:

(1) On 23 and 24 October you flew from Melbourne to Sydney to obtain heroin from Duong.  You obtained from him an unknown quantity which you later on-sold to drug traffickers in Melbourne. 

(2) On 9 November 2010 you again flew from Melbourne to Sydney and purchased an unknown quantity of heroin from Duong which you on-sold to drug traffickers in Melbourne after you returned.  

(3) On 14 November 2010 you purchased 56 grams of mixed heroin from Duong in Sydney, then returned to Melbourne and on-sold it to local dealers.

(4) On 27 November 2010 you flew from Melbourne to Sydney and purchased 280 grams of mixed heroin from Mr Duong, later returned to Melbourne and on-sold it.  When I say Duong I mean Duong or one of his associates at his direction. 

(5) On 2 December 2010 you flew to Sydney and you purchased 366 grams of mixed heroin, returned to Melbourne and distributed it.  On this occasion the money was paid later.  It seems from the evidence that you had a running account with Mr Duong and you were usually in debt to him in significant sums of up to $10,000 at a time.  On that particular occasion you were directed by Mr Duong to pay $40,000 for those drugs that had been purchased in Sydney to Tuyet Tieu in Melbourne. 

(6) On 9 December 2010 you flew from Sydney to Melbourne.  You brought back from Sydney with you 76.5 grams of methylamphetamine together with some heroin. 

(7) On 14 December 2010 one of Mr Duong's associates in Melbourne supplied you with 168 grams of heroin which you on-sold to your dealers.

(8) On 22 January 2011 you obtained in Sydney an unknown quantity of heroin from Duong and later returned to Melbourne and on-sold it. 

(9) On 1 February 2011 you obtained 120 grams of pure heroin from Duong or his associates in Sydney.  This was one of the occasions in relation to which you were actually apprehended by the police and drugs and cash in your possession and the possession of one of your co-offenders were seized.  

(10)  On 7 February 2011 you obtained 215 grams of heroin in Sydney from Mr Duong or his associates, this time using a courier to bring the heroin back to Melbourne on your behalf. 

(11) Finally, on 3 March 2011 you obtained from Tuyet Tieu in Melbourne on behalf of Mr Duong a further 280 grams of heroin. 

7In total during the period covered by the charge, you obtained approximately 1568 grams of heroin not including the unknown quantities you obtained on those three occasions I have mentioned.  The total value of the heroin in Melbourne at that time, that is, the wholesale value, was somewhere between $588,000 and $644,000.  It has been estimated that that heroin may have had a street value of up to $3.3 million at the relevant time, not that it is suggested that you were selling it at street level or that any sum like that came into your possession.

8In relation to the methylamphetamine, as I have mentioned already, you obtained and trafficked in 76.5 grams of methylamphetamine which was probably worth wholesale approximately $60,000. 

9You were arrested by the investigators on 15 April 2011.  Upon your arrest, a search warrant was executed at your residential premises in Nunawading.  A large quantity of cash was seized together with a number of mobile phones.  The cash was both in Australian dollars and Vietnamese Duong.  During the course of the subsequent record of interview you made a series of false denials in relation to your drug trafficking activities.  As I understand it, you were detained in custody for five days before being released on bail.  Accordingly, and up until the time I remanded you in custody, you had been on bail awaiting sentencing in this matter for well in excess of three years.

10A comprehensive plea in mitigation was made on your behalf by Mr Anger of counsel.  At the outset of the plea he tendered the report from Mr Bernard Healey which was marked as Exhibit 1.  The report helpfully sets out comprehensive details of your background, in particular your difficult childhood in Vietnam and then the subsequent difficulties you experienced on your way to Australia at a refugee camp with your brother as a young teenager and eventually, on arrival at Australia, struggling with education and assimilating into the Australian society.  Eventually whilst in Sydney, and, after a relationship came to an end, you became involved in heroin abuse which, it would seem, is a problem that had plagued you for many years up until the time of your apprehension.  Your counsel properly conceded on the other hand that the psychological report, whilst providing details of your difficult childhood and problems with drug abuse and gambling addiction, it does not point to any particular psychological or psychiatric problem or illness which could be said to have directly contributed to your offending.  Rather, it provides very helpful background information to put your offending in context.

11During the course of the plea, Mr Anger provided me with quite some detail about your background.  You are 40 years of age, having been born in Vietnam in 1973 during the Vietnam War.  Your father, who you had never met, had worked for the US Military and, as result of that, when the war came to an end in 1975 your family was subjected to great hardship and treated very badly, so I was told.  As a result of that your education was extremely limited.  You did not go to school formally as a child, but rather assisted your mother and grew up, as was put by Mr Anger, virtually on the streets.

12When you were aged 13 you and your brother left the country.  Your mother had already re-partnered with another man, your step-father who had come to Australia.  He was then able eventually to sponsor you and your brother to Australia after you had spent about a year in refugee camps in Indonesia.  Your mother followed the following year.  Upon arrival in Australia you settled in Melbourne with your stepfather.  You lived in Housing Commission Flats in Collingwood and went to Collingwood High School.  Mr Anger told me that you experienced great difficulties at school and coped very poorly. 

13At the age of 16 you went to Sydney.  There you met a young woman with whom you developed a relationship and eventually moved in to live with her and her family.  At age 18 you were able to obtain employment in a local pub in Cabramatta and later worked in factories doing various types of work such as process work.  At one stage you worked with Qantas in the catering area. 

14In about 1997 your relationship with your girlfriend in Sydney, with whose family you had been living, came to an end.  As a result of your inability to cope with the end of that relationship, I was told, you started using heroin and soon developed what Mr Anger described as "a significant habit."  You returned back to Melbourne.  You met your first wife and married her.  That marriage produced two sons: Jimmy, who is now aged 14, and Kevin, now aged 13. After you had married that woman you had returned to Vietnam.  Jimmy had been born there.  You then returned to Australia and Kevin was born here a year after your return. 

15That marriage lasted for only three or four years.  When it came to an end you again returned to Vietnam.  There you commenced a business with your cousin.  The business was involved in selling glue and leather goods for boot-makers.  It was a successful business, which you and your cousin operated for 10 years.  It was during that period in Vietnam, in about 2006, you met your second wife, Kim Dung Nguyen.  You sold the business in Vietnam, returned to Australia with Kim and married her.  Eventually, with the proceeds of the sale of the business, and after living for some time with your mother, you were able to buy your own home in Forest Hills with a mortgage from the Commonwealth Bank. 

16You and your second wife had another child.  Your daughter, Mali, who is now aged 5, was born in August 2009.   

17After your daughter was born and after you settled in your new home, you established your wife in a women's fashion store in Brighton.  Unfortunately that was a failure, the business collapsed and you were left with significant debt.  You were burdened with your mortgage and other debt and it was in those circumstances, I was told, that your offending started.  During these years you had been using heroin and, for one reason or another, possibly related to the stress of your financial circumstances, you also began gambling regularly.  You developed what Mr Healey has described as a gambling addiction.  

18Eventually, as a result of these circumstances, the collapse of your business, worsening drug addiction and mounting gambling debts, your combined debts were such that you and your wife felt there was no choice but to sell your house.  That was done in October 2010.  As I understand it, the settlement of the sale occurred in late November.  You received net proceeds of something a little less than $200,000.  As Mr Pirrie for the Crown conceded, the evidence reveals that that money was quickly dissipated.  I accept what Mr Anger told me, on your instructions, that the money was effectively used to repay some of the debts that you had accumulated and for further gambling; no doubt gambling to chase further debts.

19It is not insignificant that your drug trafficking activities corresponded with the time when your debt level was so high that you had no option but to sell your home.  That of course does not provide any excuse, but it does put the motivation for your offending in context.  I accept Mr Anger's submission, and I think it is conceded by the Crown, that although you may well have been motivated to make profits, as you clearly were from your drug trafficking activities, due to your ongoing indebtedness and other problems with drugs and gambling, in the end there is no evidence of any enrichment.  In fact, the evidence is that you have lost everything.  You certainly lost your home, and the proceeds of its sale were quickly dissipated. 

20Since the time of your arrest and particularly since the time of being released on bail in mid-April 2011 you have not reoffended.  On the resumption of this plea earlier this week, your counsel tendered a statement by your wife, Kim Trin Nguyen, which was marked as Exhibit 2.  That statement confirmed the history that I was given earlier by Mr Anger.  In particular, it referred to the fact that since being released on bail you had conducted yourself properly within the community and within your family.  About 18 months ago your wife suffered damaged nerves in her back and was unable to work for about six or seven months.  She says in her statement that during that time you undertook all of the necessary household chores, including the care of your children.  Your wife confirms that your two sons by your first marriage, Jimmy and Kevin, were residing with you, up until the time you were recently remanded in custody for sentence.  They were attending Simmons College in West Melbourne and you were caring for them in every way.  Their mother, your first wife, has returned to Vietnam where, as I understand it, she has had further children.  Your two sons are now in the care of their stepfather in Melbourne and I accept your wife's stated concern, a shared concern by you and her, about the welfare of those two boys who you believe are not getting the care and supervision they need, as you were able to provide to them before you were remanded in custody.  Also your wife in her statement confirms that from her perspective you have been successful in ceasing to use drugs.  She refers to one relapse on one occasion while you were on bail but, to her knowledge and from her observations, you had not used any drugs for at least 12 months prior to being recently remanded in custody. 

21Drawing these threads together, Mr Anger in his final submissions submitted that you should be sentenced on the basis that you are not a coldly calculating commercial drug trafficker, purely motivated by greed to become rich, but that your drug trafficking should be seen as a product of, amongst other things, what he described as your level of dysfunction and your self-perceived need to deal with problems of debt, drugs and gambling addiction.  Mr Anger, of course, did not suggest that in any way excuses your conduct.  He asked me to take into account, by way of mitigation, your plea of guilty.  He referred me to recent authority on that question and as conceded by the Crown, I will be allowing a significant discount by virtue of your plea.  It may well have been very late in the piece, but it was significant from the point of view of the utilitarian benefit it provided to the community.  Had this matter proceeded the trial would have been lengthy and costly.  I accept also that your plea of guilty represents an acknowledgement of responsibility on your behalf and it provides some evidence of remorse and regret.

22Secondly, he asked me to take into account the significant delay of some three and a half years since you were apprehended and I do.  The delay has not only involved ongoing stress and anxiety for you and your family, whilst you have awaited the outcome of these proceedings, it has allowed you to demonstrate that you do have the capacity to conduct yourself properly in the community and it is relevant in assessing your prospects of rehabilitation.

23Thirdly, as urged by your counsel I take into account and accept, again as conceded by the Crown, that your knowledge that your children will be struggling in your absence, particularly your two sons, about whom you are so concerned, will increase the burden or hardship of imprisonment in your case and I take that into account pursuant to the principles enunciated in the case of Markovic.

24I was also asked to take into account broadly all that I know about your difficult upbringing, your limited education, as providing context for your offending, and I do. 

25Finally, I take into account that since being in custody you have been working eight hours a day five days a week in the kitchen.  That is voluntary, and you have told your counsel that you intend to use your time usefully whilst you serve your sentence.  Of course that is relevant in the assessment of your prospects of rehabilitation. 

26I accept your counsel's submission that in all the circumstances, bearing in mind your past history, your subsequent conduct and these other matters, that you do have strong prospects of rehabilitation, particularly now that you are not using drugs, and you have a family awaiting you upon your release, and so I accept that it is appropriate in your case to impose a longer than usual gap between the minimum non-parole period and the head sentence. 

27At the conclusion of the plea, Mr Pirrie on behalf of the Crown made a number of submissions.  He submitted that this was an example of significant drug trafficking.  You effectively operated through your own syndicate, which you developed in Melbourne.  There were at least 11 significant transactions.  Your conduct involved, on occasions, using couriers to transport drugs on your behalf from Sydney to Melbourne and involved some 14 or 15 return trips, Melbourne to Sydney and back on your part.  There is no question that this is a serious example of trafficking, both in terms of its longevity or duration and the quantities trafficked and that the only sentence of course must be a significant sentence of imprisonment.  However, the Crown made a number of concessions, as a matter of fairness.  Mr Pirrie conceded that the evidence did reveal that you had what he called "a rolling drug debt" to Mr Duong.  The evidence did reveal that the net proceeds of your house sale were withdrawn and apparently dissipated within a short time.  From the Crown's perspective, it would seem that as a result of the arrests that took place during the course of your activity and seizures you would had "lost" some $250,000 worth of drugs and cash. 

28It was also conceded by the Crown that there was evidence that you were engaged in significant gambling.  For example, the casino records in the 12 month period up to your arrest revealed that you had lost about $80,000 at Crown casino.  It was conceded that the evidence did reveal that you were using heroin, although there was no evidence, the Crown urged, that you were using also cocaine and methylamphetamine or that you were a significant addict, as described by Mr Healey in his report.  The Crown conceded that, whilst the plea was late, it did provide a significant utilitarian benefit and entitled you to a discount.  Finally, the Crown conceded, as I have already mentioned, that I was entitled to take into account the additional burden of you suffering by way of your concern whilst in gaol for the welfare of your children, particularly your two sons who are in the care of their stepfather.  I also take into account that you have been cooperative with the authorities in recent times, having consented to a restraining order that was made by His Honour Judge Parsons some time ago in relation to your assets.

29Having weighed all these matters into the balance and carefully considered the significant gravity of your offending, on one hand, against the mitigating matters I have just summarised on the other, and having looked in recent times not only at the sentencing practices in relation to drug trafficking in relation to Commonwealth offences but also State offences, I have decided that the appropriate sentence is as follows.

30On the charge of trafficking a marketable quantity you are convicted and sentenced to be imprisoned for seven years.  I fix a minimum non-parole period of four years.

31I declare pursuant to s.6AAA that but for your plea of guilty I would have sentenced you to a term of eight and a half years with a minimum of five years.  Is there anything else I need to do?

32MR PIRRIE:  PSD is 63 days, Your Honour.

33HIS HONOUR:  Yes.  I declare you have already served 63 days by way of pre-sentence detention which would be reckoned as having been served pursuant to this sentence.

34COUNSEL:  As Your Honour pleases.

35HIS HONOUR:  Anything else, Mr Pirrie?

36MR PIRRIE:  No, Your Honour.

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